A Dollar for Your Thoughts by Brian Vickers

In the recent decision of Acumen Law Corporation v. Nguyen, 2018 BCSC 961, Madame Justice Murray for the Supreme Court of BC awarded a successful party $1.00 for damages related to a defamatory statement. Such a low monetary award is an outcome rarely delivered by the Courts and one that denotes a clear dissatisfaction with the conduct of a successful party. Although technically a success, this case pays homage to the following phrase from the Kenny Rogers’ song “The Gambler”: “You got to know when to hold ’em, know when to fold ’em …”. In this case, the Court determined this was the wrong case to “hold ‘em”.

The plaintiff in this case is a lawyer whose primary practice is representing clients for 90-day immediate roadside driving prohibitions (“IRP”). The defendant hired the lawyer to dispute an IRP. When the lawyer was unsuccessful, the defendant sought his money back. This request was denied. As the hiring of counsel is never a guarantee of success, it is unlikely the Court took any issue with the steps taken up to this point. However, as the defendant was unhappy, he made the following post on the lawyer’s Google Plus profile:

“I spent nearly $2000 for kyla lee to lose a case for me that they seemed they didnt (sic) put any effort into. Anywhere else would be moore (sic) helpful.worstest (sic) lawyer.would not recommend”

(the “Post”)

The lawyer asked the defendant to remove the post but this never happened. Shortly thereafter, the lawyer sued the defendant in defamation. The case was undefended and the lawyer exercised her legal right to obtain judgment against the defendant. The legal term for this step is called obtaining a “Default Judgement”. Once Default Judgment was obtained, the lawyer had two options: (1) to “hold ‘em” and appear before a judge to assess the value of the Default Judgement; or (2) to “fold ‘em” and walk away from the judgment absent any further action. In this case, the lawyer decided to “hold ‘em”.

At the hearing to assess and quantify the damages the lawyer suffered as a result of the Post, the Court is obligated to rule in favor of the party with the Default Judgement. However, the Court can assess damages on a scale of $1.00 and up (see Nazerali v. Mitchell, 2018 BCCA 104 where the Court awarded combined defamatory damages in excess of $900,000). After review of the relevant information, the Court made the following comment:

34 In this time when virtually everyone has instantaneous access to the internet, many use the internet to express their feelings without pause or reflection. Business people with Google Plus profiles or the like invite comments from customers. Surely no on can expect to receive all favourable reports. When choosing a lawyer or other professional or service provider, prospective customers reading such reviews would be naïve to think that anyone or any business would receive all positive reports. As the adage goes, you can’t please everyone all the time.

In concluding remarks, the Court expressly disproved of the plaintiff’s action and stated the following at paragraph 36: “In my view this action should never have been brought”.

From review of this decision, two things arise. The first, which was previously mentioned, is that litigation should be an exercise of continuous assessment of many factors which include weighing objectives, goals, possible outcomes, and risk. When these factors, and numerous others, are balanced and weighed, sometimes restraint, or the “fold ‘em” option, is the best course of action.

The second thing that arises is that the internet can be a scary place to vent your opinions – even if legitimate. It is exceedingly rare for a successful party to only obtain judgement for $1.00 and this case should not be seen as free pass to “troll” people on the internet. As in the case of Pritchard v. Van Nes, 2016 BCSC 686, “venting” on social media can have grave consequences and people should be cautious before making a denigrating or disparaging post about another person or entity. Even if a post may not meet the legal definition of being defamatory, this case demonstrates that you could still be the subject of legal action.